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BOOK29 
On the way to compose the laws 



CHAPTER I 

On the spirit of the legislator 

I say it, and it seems to me that I have written this work only to prove it: 
the spirit of moderation should be that of the legislator; the political 
good, like the moral good, is always found between two limits. Here is 
an example. 

The formalities of justice are necessary to liberty. But, their number 
could be so great that it would run counter to the end of the very laws 
establishing them: suits'* would be interminable; die ownership of 
goods would remain uncertain; one of the parties would be given die 
goods of the other without examination, or both would be ruined by the 
examination. 

Citizens would lose their liberty and their security; accusers would 
no longer have the means to convict nor the accused, a means to 
vindicate themselves. 

"affaires. See note \ bk. 2; note^, bk. 28. 



CHAPTER2 

Continuation of the same subject 

Caecilius, according to Aulus Gellius,^ speaking on that law of die 
Twelve Tables that permitted the creditor to cut the insolvent debtor to 
pieces, justifies the law by its very atrocity, which prevented one's 
borrowing beyond one's abilities.^ Shall the cruellest laws, therefore, 

'[A^] bk. 20, chap, i [20.1.39-52]. 

^Caecilius states that he had neither seen nor read of this penalty being inflicted; indeed, it 



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be the best.^^ Shall the excess be the good, and all the relations between 
things be destroyed.^ 

is likely that it was never established. The opinion of a number of jurists, that the Law of 
Twelve Tables spoke only of the division of the price paid for the debtor, is very possible. 



CHAPTER3 

That laws which seem to diverge from the aims of the 
legislator often conform to them 

The law of Solon, which declared infamous all those who took no part 
in a sedition, has appeared extraordinary, but one must attend to the 
circumstances of Greece at that time. Greece was divided into very 
small states; in a republic tormented by civil discord it was to be feared 
that the most prudent people would take cover and that things would 
thereby be carried to an extreme. 

In the seditions that occurred in these small states, the bulk of the 
town entered the quarrel, or began it. In our great monarchies the 
parties are formed by a few, and the people want to lead a life of 
inaction. In this case it is natural to incorporate the seditious men into 
the bulk of the citizens, not the bulk of the citizens into the seditious 
men; in the former, the small number of wise and tranquil people must 
be made to go among the seditious men; thus it is that the fermentation 
of one Uquor can be checked by a single drop of a different one. 



CHAPTER4 
On laws that run counter to the aims of the legislator 

There are laws that the legislator has understood so poorly that they are 
even contrary to the end he himself has proposed. Those who 
estabUshed for the French that when one of two claimants to a benefice 
dies, the benefice remains with the survivor, doubtless sought to quell 
disputes. But a contrary effect results from it: one sees ecclesiastics, 
like mastiffs, attack each other and fight to the death. 



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CHAPTERS 

Continuation of the same subject 

The law I shall mention occurs in this oath that has been preserved for 
us by Aeschines.^ "I swear that I will never destroy a town of the 
Amphictyons and that I will not divert its running water; if any people 
dare do such a thing, I shall declare war on them, and I shall destroy 
their towns." The last article of this law, which seems to confirm the 
first, is in reality contrary to it. The Amphictyonic league wants the 
Greek towns never to be destroyed, and this law opens the door to the 
destruction of these towns. In order for the Greeks to establish a good 
right of nations, they had to become accustomed to thinking it an 
atrocious diing to destroy a Greek town; therefore, they should not 
destroy even destroyers. The law of the Amphictyons was just, but it 
was imprudent. This is proved by the very abuse of it that occurred. Did 
not Philip give himself the power to destroy towns on the pretext that 
they had violated die laws of the Greeks.? The Amphictyons could have 
inflicted other penalties: ordering, for example, that a certain number 
of magistrates in the town of the destroyers or of leaders of the violating 
army would be punished by death; that the destroyers would cease for a 
time to enjoy the privileges of Greeks; diat they would pay a fine until 
the town was reestablished. Above all, the law should have addressed 
the reparation of the damage. 

^[Aeschines] De falsa legatione [On the Embassy 1 15]. 



CHAPTER6 

That laws that appear the same do not always 
have the same effect 

Caesar forbade men to keep more than sixty sesterces in their houses.^ 
In Rome this law was regarded as quite proper for reconciling debtors 
and creditors because, by obliging die wealthy to lend to the poor, it put 
the latter in a position to satisfy the wealdiy. A similar law, made in 

^Cass. Dio, bk. 41 [41.38]. [This should be 60,000, not 60, sesterces.] 



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France at the time of the System,^ was catastrophic; this is because the 
circumstances in which it was made were frightful. After removing all 
the means of investing one's silver, even the recourse of keeping it at 
home was taken away; this was equivalent to taking it away by violence.' 
Caesar made his law so that silver would circulate among the people; 
the minister of France made his so that silver would be collected in a 
single hand. The first gave lands or mortgages on individuals for silver; 
the second offered for silver, bills that had no value and which could by 
their nature have none, because his law obliged one to take them. 



*0f John Law. 



^See 22.10. 



CHAPTER7 

Continuation of the same subject. Necessity for 
composing the laws well 

The law of ostracism was estabUshed in Athens, Argos, and Syracuse.^ 
In Syracuse it produced a thousand ills because it was made without 
prudence. The principal citizens banished each other by holding a fig 
leaf in their hand,^ so that those of some merit no longer took part in 
public business. In Athens, where the legislator felt the extension and 
limits that he should give to his law, ostracism was a remarkable thing; 
only a single person was subjected to it; there had to be such a great 
number of votes that it was difficult for any one to be exiled unless his 
absence was necessary. 

One could banish only every five years: indeed, as soon as ostracism 
was practiced only against a great personage who inspired fear in his 
fellow citizens, it should not have been an everyday business. 

^Aristotle, Republic [Politics], bk. 5, chap. 3 [i302bi8-i9]. 

^VhiXdiXch^LifeofDionysius. [Plutarch did not write a life of Dionysius of Syracuse. He wrote 
a life of Dion, an adviser to Dionysius, but does not describe the Syracusan form of 
ostracism, called petalism. A source for this information is Diodorus Siculus, 1 1.87.] 



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CHAPTERS 

That laws that appear the same have not always had the 
same motive 

France accepts most of the Roman laws on substitutions; but in France, 
substitutions have a motive altogether different from that of the 
Romans. For them an inheritance was bound with certain sacrifices to 
be made by the heir and were ruled by pontifical right.^ This is why they 
considered it dishonorable to die without an heir and took their slaves 
for heirs or devised substitutions. The vulgar substitution, the first 
devised and applicable only when the appointed heir would not accept 
the inheritance, is a great proof of this; its purpose was not to 
perpetuate the inheritance in a family of the same name, but to find 
someone who would accept the inheritance. 

^When the inheritance was too burdened, one could avoid the right of the pontiffs by 
certain sales, hence the phrase sinesacris haereditas: without sanctified heirs. 



CHAPTER9 

That, without having the same motive, both Greek and 
Roman laws punished the killing of oneself 

"A man," says Plato,^ "who killed the one with whom he is most closely 
linked, that is, himself, not by order of the magistrate, or to avoid 
ignominy, but from weakness, will be punished." Roman law punished 
this act, when it was done not from weakness of soul, from boredom 
with life, or from an incapacity to suffer sorrow, but from despair over 
some crime. The Roman law absolved in the case where the Greek 
condemned and condemned in the case where the latter absolved. 

Plato's law was formed along the lines of the institutions of the 
Lacedaemonians, where the orders of the magistrate were completely 
absolute, where ignominy was the greatest misfortune, and weakness 
the greatest crime. Roman law abandoned all these fine ideas; it was a 
fiscal law only. 

At the time of the republic, there was no law in Rome punishing 

^[Plato] Lam, bk. 9 [Sysc-d]. 



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those who killed themselves; this act is always taken in stride by the 
historians, and one never sees a punishment for those who did it. 

At the time of the first emperors, the great families of Rome were 
constantly exterminated by judgments. The custom of preventing 
condemnation by voluntary death was introduced. It offered a great 
advantage. One gained the honor of a burial and the execution of one's 
testament;^ this came from Rome's having no civil law against those 
who killed themselves. But when the emperors became as avaricious as 
they had been cruel, they no longer left to those of whom they wanted to 
be rid the means of preserving their goods, and they declared that it 
would be a crime to take one's life out of remorse for another crime. 

What I say of the motive of the emperors is so true that they agreed 
that the goods of those who killed themselves should not be confiscated 
when the crime for which they killed themselves was not subject to 
confiscation.^^ 

^ "Those who decided on their own [to commit suicide] had their bodies buried and their 
wills respected; this was the reward for making haste" [L.] Tacitus \Annales, 6, 29]. 

^^Rescript of the Emperor Pius, in Law 3, paras. 1-2 [Corpus Juris Civilis, Digest 48.2 1 .3. i- 
2], de bonis eorum qui ante sententiam vel mortem sibi consciverunt vel accusatorem corruperunt. 



CHAPTER 10 

That laws that seem contradictory are sometimes 
derived from the same spirit 

Today one goes into the house of a man to summon him to judgment; 
this could not be done among the Romans.*^ 

A summons to judgment was a violent action,^^ a kind of physical 
constraint,^^ and one could no more enter the house of a man to 
summon him to judgment than one can today go into his house to 
physically constrain a man condemned only for civil debts. 

The Roman laws^'* and ours equally admit the principle that each 

"Law 18 [Corpus Juris Civilis, Digest 2.4.21, 22]; in jus vocando. 

^^See the Law of die Twelve Tables [V// Tables, Unplaced Fragments, 5, i.e., Cicero, De 

republica 2.31.54]. 
^^"He hastened him to Court" [L.]. Horace, Satires 9 [1.9.77]. This is why one could not 

summon to judgment those to whom a certain respect was owed. 
^"^See Law 18 [Corpus Juris Civilis, Digest 2.4.18, 21, 22]; in jus vocando. 



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citizen's house is his sanctuary and that he should not be done violence 
in it. 



CHAPTER II 

In what way two different laws can be compared 

In France the penalty for false witnesses is capital; in England it is not. 
In order to judge which of these two laws is better, one must add that in 
France criminals are put to the question, in England, they are not; and 
one must also say that in France the accused does not produce his own 
witnesses, and it is very rare to admit what are called mitigating 
circumstances;'' that in England one receives testimony from both 
parties. The three French laws form a well-linked, consistent system; 
the three English laws form one that is no less so. The English law, 
which does not admit putting criminals to the question, has only slight 
expectations of drawing from the accused a confession of his crime; it 
summons outside testimonies then from every quarter, and it does not 
dare discourage them by the fear of a capital penalty. The French law, 
which has an additional recourse, does not so greatly fear intimidating 
the witnesses; on the contrary, reason demands that it intimidate them: 
the law hears the witnesses of one side only;^^ they are those produced 
by the public party, and the fate of the accused depends on their 
testimony alone. But in England, one accepts witnesses from both 
sides, and the business is, so to speak, argued out between them. 
Therefore, false witnesses can be less dangerous there; the accused has 
a recourse against false witness, whereas French law gives none. Thus, 
in order to judge which of these laws is more in conformity with reason, 
they must not be compared one by one; they must be taken all together 
and compared together. 

'^ Under the old French jurisprudence, witnesses were heard from both parts. Thus one can 
see, in Les Etablissements de Saint Louis, bk. i, chap. 7 [1.9], that the penalty against false 
witnesses, in a matter of justice, was pecuniary. 



les fails justificatifs . 



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The way to compose the laws 



CHAPTER 12 

That laws that seem alike are sometimes really different 

Greek and Roman laws punished the receiver of stolen goods as they 
did the robber;^^ French law does die same. The first were reasonable; 
the latter is not. Among the Greeks and Romans, since the robber was 
condemned to a pecuniary penalty, one had to punish the receiver with 
the same penalty, for a man who contributes in any way whatever to this 
damage should repair it. But as among us tiie penalty for robbery is 
capital, it has not been possible to punish the receiver like the robber 
without carrying things to excess. The one who receives stolen goods 
can on a thousand occasions receive them innocentiy, the one who robs 
is always guilty; the former prevents conviction for the crime already 
committed, the latter commits the crime; all is passive in the one, there 
is action in the other; the robber must overcome more obstacles and his 
soul must have been hardened against the laws for a longer time. 

The jurists went further: they regarded the receiver as more odious 
than the robber,^^ for without him, they say, the robbery could not be 
hidden for long. This, again, could be good so long as the penalty was 
pecuniary; it was a question of damage, and ordinarily the receiver was 
more in a position to make reparation; but when the penalty became 
capital, one should have been ruled by other principles. 

^^Law I [Corpus Juris Civilis, Digest 47.16]; de receptatoribus. 
'^Law I [Corpus Juris Civilis, Digest 47.16]; ^^ receptatoribus. 



CHAPTER 13 

That laws must not be separated from the purpose for which 
they are made. On the Roman laws about robbery 

When the robber was caught with stolen goods before he had put them 
where he had decided to hide them, it was called a manifest robbery 
among the Romans; when the robber was discovered only afterwards, it 
was a non-manifest robbery. 

The law of the Twelve Tables ordered that the manifest robber be 
whipped and reduced to servitude if he were an adult, or only whipped 



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if he were not an adult; it condemned the non-manifest robber only to 
paying twice the value of the stolen thing. 

When the Porcian law had aboHshed the usage of whipping citizens 
and reducing them to servitude, the manifest robber* was condemned to 
a payment of quadruple the value,*^ and the non-manifest robber 
continued to be punished with a payment of double. 

It seems odd that the laws put such a difference in the status of these 
two crimes and in the penalty they inflicted for them; indeed, whether 
the robber was caught before or after carrying the stolen goods to the 
place of destination was a circumstance which did not change the 
nature of the crime. I cannot doubt that the whole theory of the Roman 
laws on robbery was drawn from Lacedaemonian institutions. 
Lycurgus, with a view to endowing his citizens with cunning, trickery, 
and quickness, wanted the children to be trained in petty theft and be 
severely whipped if they were caught; among the Greeks and later 
among the Romans, this estabhshed a great difference between 
manifest robbery and non-manifest robbery. ^^ 

Among the Romans the slave who had robbed was thrown off the 
Tarpeian rock. Here it was not a question of the Lacedaemonian 
institutions; the laws of Lycurgus on robbery had not been made for 
slaves; deviating from them on this point was to follow them. 

In Rome, when someone who was not of age was caught in a robbery, 
the praetor had him whipped at his will, as was done in Lacedaemonia. 
All this came from a more distant past. The Lacedaemonians had 
drawn these usages from the Cretans, and Plato,^^ who wants to prove 
that the Cretan institutions were made for war, cites this one: "The 
faculty of bearing pain in individual combats and in petty thefts that 
have to be concealed." 

As civil laws depend on political laws because they are made for one 
society, it would be well if, when one wants to transfer a civil law from 
one nation to another, one examines beforehand whether they both 
have the same institutions and the same political right. 

Thus, when the laws on robbery passed from the Cretans to the 
Lacedaemonians, as they passed to them along with the government 

'^See what is said by Favorinus according to Aulus Gellius [A^^], bk. 20, chap, i 
[20.1.9-19]. 

'^Compare what Plutarch says in Vit. Lycurgus [i 7-1 8.3] with the laws in the Digest [Corpus 
Juris Civilis, Digest 47, 2 (2, 3)]; de funis and the Institutes, bk. 4, tit. i, paras. 1-3 [Corpus 
Juris Civilis, Institutes 4.1.1-3; ^^ obligationibus quae ex delicto nascuntur]. 

^^[Phto] Laws, hk. 1 [633b]. 



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The way to compose the laws 



and even the constitution, these laws were as sensible for one of these 
peoples as they were for the other. But when they were carried from 
Lacedaemonia to Rome, as they did not find the same constitution, 
they were always foreign to it and had no link with the other civil laws of 
the Romans. 



CHAPTER 14 

That laws must not be separated from the circumstances in 
which they were made 

An Athenian law wanted all the useless people to be put to death when 
the town was besieged.^^ This was an abominable political law which 
was a consequence of an abominable right of nations. Among the 
Greeks, the inhabitants of a captured town lost their civil liberty and 
were sold as slaves; the capture of a town brought about its entire 
destruction. And this is the origin not only of these unyielding defenses 
and unnatural actions, but also of the atrocious laws that were 
sometimes made. 

The Roman laws wanted doctors to be punishable for their negli- 
gence or incompetence.^^ In this case, they condemned a doctor to 
deportation when his rank was somewhat elevated and condemned him 
to death when his rank was lower. It is otherwise with our laws. The 
Roman laws were not made in the same circumstances as ours; in 
Rome, those who wanted to meddle in medicine did; but, among us, 
doctors are obliged to study and to take certain degrees, so they are 
deemed to know their art. 

^' "Those useless on account of age are to be killed" [L.]. Syrianus, Scholia ad Hermogenis 

[Commentarium in librum "Peri staseon"; p. 167, #16-25]. 
^^ [Corpus Juris Civilis, Digest 48.8 (3.5)] ad legem Comeliam desicariis etvenefis; Institutes, bk. 

4, tit. 3, para. 7 [Corpus Juris Civilis, Institutes 4.3.7]; de legeAquilia. 



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CHAPTER 15 

That it is sometimes well for a law to correct itself 

The law of the Twelve Tables permitted one to kill someone who 
robbed at night,^^ as well as someone who robbed during the day who, 
upon being followed, put up a defense; but it wanted the one who killed 
the robber to cry out and summon the citizens,^'^ and this is a thing that 
laws which permit one to do justice oneself should always require. It is 
the cry of innocence which, at the moment of action, summons 
witnesses, summons judges. The people must know about the action 
and must know of it at the moment it is done; at a time when everything 
speaks, appearances, faces, passions, silences, and when every word 
condemns or justifies. A law that can become so contrary to the security 
and the liberty of the citizens should be executed in the presence of the 
citizens. 

^^See law 4 [Corpus Juris Civilis, Digest 9.2.4(1)]; ad Legem Aquiliam. 

^^Ibid. [Corpus Juris Civilis, Digest g.i. 4(1); ad Legem Aquiliam]. See the decree of Tassillon 

added to the Lex Baiuwariorum, art. 4 [Additiones legis Baiuvpariorum.Additio quinta 4.3]; de 

popularibus legibus. 



CHAPTER16 

Things to observe in the composition of laws 

Those who have a comprehensive enough genius to be able to give laws 
to their own nation or to another should pay certain attentions to the 
way they are formed. 

Their style should be concise. The laws of the Twelve Tables are a 
model of precision; children learned them by heart.^^ The Novellae of 
Justinian are so diffuse that they had to be abridged.^^ 

The style of the laws should be simple; direct expression is always 
better understood than indirect. There is no majesty in the laws of the 
Eastern Empire; its princes are made to speak like rhetoricians. When 
the style of die laws is inflated, they are regarded only as a work of 
ostentation. 

^^"As required songs" [L.]. CicGro, De legibus, bk. 2 [2.23.59]. 
^^This was the work of Irnerius. 



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It is essential for the words of the laws to awaken the same ideas in all 
men. Cardinal Richelieu agreed that one could accuse a minister 
before the king,^^ but he wanted one to be punished if the things one 
proved were not worthy of consideration, which kept everyone from 
speaking any truth whatsoever against the minister because what is 
worthy of consideration is entirely relative and what is worthy of 
consideration for one is not so for another. 

The law of Honorius punished by death any one who bought as a serf 
a freed man and any who wanted to cause him distress.^^ Such a vague 
expression must not be used; the distress one causes a man depends 
entirely on the degree of his sensitivity. 

When the law has to impose some measure,'^ one must, as much as 
possible, avoid doing so at a price in silver. A thousand causes change 
the value of the money, and with the same denomination one no longer 
has the same thing. One knows the story of the impertinent man in 
Rome^^ who slapped everyone he met and had them given the twenty- 
five sous of the law of Twelve Tables. 

When the ideas of things have been well fixed in a law, one must not 
return to vague expressions. In the criminal ordinance of Louis XIV,^° 
after an exact enumeration of royal cases, these words are added, "And 
those the royal judges have judged in all times"; this brings back the 
arbitrariness that had just been left behind. 

Charles VII says that he learns that parties make an appeal three, 
four, and six months after the judgment, contrary to the custom in the 
countries of customary law;^^ he orders them to appeal immediately 
unless there is a fraud or deceit by the prosecutor^^ or a great and 
obvious cause to take up the appeal. The conclusion of this law destroys 

^^ Testament politique [Cardinal Richelieu, pt. i, chap. 8, sec. 7, p. 316; 1947 edn]. 

^"Or whoever might wish to disquiet one who had been granted emancipation" [L.], Codex 
Theodosianus. Constitutiones Sirmondianae, vol. i, p. 737 [tit. 19, deemed spurious, not 
included in the standard edition, Mommsen, 1905]. 

^^Aulus Gellius [NA], bk. 20, chap, i [20.1. 13]. 
In the testimony for this ordinance one can find their motives for it [1670. August. Recueil 
general des anciennes lois franqaises. Bourbons, #623, tit. i, "De la competence des juges," 
# 1 1 ; 1 8, 374]. [It should be noted that M.'s quotation is not from the law in question, but 
represents his own interpretation; see the note at the passage, 18, 374.] 
'in his ordinance of Montel-les-Tours, in 1453 [Lauriere, 14, 284, Charles VII. Recueil 
general des anciennes loisfranqaises, #213, art. 18; 9, 212]. 
One could punish the prosecutor without the necessity for disturbing public order. 



^The French word is vexation, here meaning a kind of tax, although we usually translate 
it as "harassment." 



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its beginning, and it destroyed it so well that subsequently one pursued 
appeals for thirty years. ^^ 

The law of the Lombards does not want a woman who has taken the 
habit of a religious order, although she has not taken her vows, to be 
able to marry,^'^ "for," it says, "if a spouse who has engaged a woman to 
himself only by a ring cannot without committing a crime marry 
another, there is even stronger reason for the spouse of god or the 
blessed virgin ..." I say that in laws one must reason from reality to 
reality and not from reality to figure or from figure to reality. 

A law of Constantine wants the testimony of the bishop alone to 
suffice, without other witnesses being heard.^^ This prince took a short 
cut: he judged the business by persons and persons by their rank. 

The laws should not be subtle; they are made for people of middling 
understanding; they are not an art of logic but the simple reasoning of a 
father of the family. 

When exceptions, limitations, modifications, are not necessary in a 
law, it is much better not to include them in it. Such details plunge one 
into new details. 

One must not make a change in a law without a sufficient reason. 
Justinian ordered that a husband could be repudiated without the wife 
losing her dowry, if he had not been able to consummate the marriage 
in two years.^^ He changed the law and gave three years to the poor 
unfortunate man.^^ But, in such a case, two years is as good as three and 
three is no better than two. 

When one goes so far as to give a reason for a law, this reason must be 
worthy of it. A Roman law decides that a blind person cannot plead 
because he cannot see the ornaments of the magistracy. ^^ To give such 
a bad reason when so many good ones present themselves must have 
been deliberate. 

The jurist Paul says that the child is born perfect in the seventh 
month and that the ratio of Pythagorean numbers seems to prove it.^^ It 

^^The ordinance of 1667 made rulings about this [1667. April, Recueil general des andennes 

lots fran^aiseSy Bourbons y #503, 18, 103-180]. 
^'^ [Leges Langobardum] bk. 2, tit. 37 [2.37.1, Liut. 30]. 

^^In the Codex Theodosianus. Constitutiones Sinnondianaey vol. i [tit. i, p. 477; 1952 edn]. 
^^Law I, Code [Corpus Juris Civilis, Code 5.17.10]; ^ repudiis et iudicio et moribus sublato. 
^^See Authenticay sed hodie [Corpus Juris Civilis, Novellae 22.6; Code 5. 17. 10]; at Code de 

repudiis et iudicio et moribus sublato. 
^^Law I [Corpus Juris Civilis y Digest 2,. i.i]\ de postulando. 
^^[Paul the Jurist] Sententiaruniy bk. 4, tit. 9 [4.9.5]. 



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The way to compose the laws 



is singular to judge these things by the ratio of Pythagorean numbers.^ 

Some French jurists have said that, when the king acquired a 
country, the churches there became subject to the right of regale, 
because the king's crown is round. I shall not discuss at all the rights of 
the king, or whether, in this case, the reason of the civil or of the 
ecclesiastical law should yield to the reason of the political law; but I 
shall say that such respectable rights should be defended by serious 
maxims. Who has ever seen the real rights of a rank founded on the 
configuration of the sign of that rank.^ 

Davila"^^ says that Charles IX was declared of age in the parlement of 
Rouen at the beginning of his fourteenth year, because the laws want 
one to reckon the time from moment to moment where the restitution 
and administration of the ward's goods are concerned; but, where the 
acquisition of honors is concerned, it regards the year begun as a year 
completed. I take care not to censure a provision which does not yet 
seem to have had drawbacks; I shall only say that the reason alleged by 
the Chancelier de THopital was not the true one; the governing of 
peoples is far from being only an honor. 

In the matter of presumption, that of law is better than that of man. 
French law regards as fraudulent all acts done by a merchant in the ten 
days preceding his bankruptcy;"^^ this is a presumption of law. Roman 
law inflicted penalties on the husband who kept his wife after her 
adultery, unless he determined to do so from fear of the outcome of a 
suit or from neglect of his own shame, and this is the presumption of 
man. The judge had to presume the motives for the husband's conduct 
and determine it by a very obscure way of thinking. When the judge 
presumes, judgments become arbitrary; when the law presumes, it 
gives a fixed rule to the judge. 

The law of Plato, as I have said, wanted one to punish the one who 
killed himself not to avoid ignominy, but from weakness."^^ This law was 
defective because in the only case where one could not draw from the 
criminal the admission of the motive that made him act, it wanted the 
judge to base his determination on these motives. 

'^^ [Enrico Caterina Davila] DeWistoria delle guerre civili diFranciay p. 96 [bk. 3; i, 281-282; 

1825 edn]. 
"^'itis from the month of November, 1702 [November 18, i']02y Recueil general des andennes 

lois franqaiseSy BourbonSy # 1 83 3 ; 20, 4 1 9-42 1 ] . 
^2[Plato]LtfzP5,bk.9[873c-d]. 



^The word raison denotes both "reason" and "ratio.' 



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As useless laws weaken necessary laws, those that can be evaded 
weaken legislation. A law should have its effect, and departures from it 
must not be permitted by some private agreement. 

The Falcidian law ordered among the Romans that the heir would 
always have a fourth of the inheritance; another law"^^ permitted the 
testator to prohibit the heir from keeping this fourth part; this is trifling 
with the laws. The Falcidian law became useless for, if the testator 
wanted to favor his heir, the latter had no need of the Falcidian law, and 
if he did not want to favor his heir, he prohibited his heir from making 
use of the Falcidian law. 

One must take care that laws are conceived so as not to run counter 
to the nature of things. In the proscription of the Prince of Orange, 
Philip II promised to give to the one who killed him, or to his heirs, 
twenty-five thousand ecus and nobility, and this on the word of the king 
and as servant of god. Nobility promised for such an action! Such an 
action ordered in one's capacity as a servant of god! All this upsets 
equally the ideas of honor, those of morality, and those of religion. 

It is rare that one must prohibit something that is not bad on the 
pretense of an imagined perfection. 

There must be a certain candor in the laws. Made to punish the 
wickedness of men, they should have the greatest innocence them- 
selves. One can see in the law of the Visigoths that ridiculous 
requirement by which the Jews were obliged to eat everything 
accompanying the pork, but not the pork itself.^ This was a great 
cruelty: they were subjected to a law contrary to their own; they were 
allowed to keep of their own only that which could be a sign by which 
they could be recognized. 

'^^Authenticdy sedsum testator [Corpus Juris Civilis, Novellae 1.2, 3; Code, 6.50.7]. 
"^[Lex Wisigothorum] bk. 12, tit. 2, para. 16 [12.2. 16]. 



CHAPTER 17 

A bad way of giving laws 

The Roman emperors, like our princes, manifested their wills by 
decrees and edicts, but, as our princes do not, they permitted judges or 
single individuals to interrogate them by letter on their disputes, and 



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The way to compose the laws 



their replies were called rescripts. The decretals of the popes are, 
properly speaking, rescripts. One senses that this is a bad sort of 
legislation. Those who demand laws in this way are bad guides for the 
legislator; the facts are always poorly presented. Trajan, says JuUus 
Capitolinus,"^^ often refused to give these sorts of rescripts, so that a 
decision, and often a particular favor, would not be extended to all 
cases. Macrinus had decided to abolish all these rescripts;"^^ he could 
not suffer one to regard as laws the responses of Commodus, Caracalla, 
and all those other incompetent princes. Justinian thought otherwise, 
and he filled his compilation with them. 

I would want those who read Roman laws to distinguish well these 
sorts of assumptions from senatus-consults, plebiscites, general con- 
stitutions of the emperors, and all the laws founded on the nature of 
things, on the frailty of women, on the weakness of minors, and on the 
public utility. 

"^^ See Julius Capitolinus, Opillius Macrinus [13.1]. 
"^^Ibid. [Julius Capitolinus, Opillius Macrinus 13.1]. 



CHAPTER 18 

On ideas of uniformity 

There are certain ideas of uniformity that sometimes seize great spirits 
(for they touched Charlemagne), but that infallibly strike small ones. 
They find in it a kind of perfection they recognize because it is 
impossible not to discover it: in the police the same weights, in 
commerce the same measures, in the state the same laws and the same 
religion in every part of it. But is this always and without exception 
appropriate.^ Is the ill of changing always less than the ill of suffering.^ 
And does not the greatness of genius consist rather in knowing in which 
cases there must be uniformity and in which differences.^ In China, the 
Chinese are governed by Chinese ceremonies, and the Tartars by 
Tartar ceremonies; they are, however, the people in the world which 
most have tranquility as their purpose. When the citizens observe the 
laws, what does it matter if they observe the same ones? 



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Part 6 

CHAPTER 19 

On legislators 

Aristotle sometimes wanted to satisfy his jealousy of Plato, sometimes 
his passion for Alexander. Plato was indignant at the tyranny of the 
people of Athens. MachiaveUi was full of his idol, Duke Valentino. 
Thomas More, who spoke rather of what he had read than of what he 
had thought, wanted to govern all states with the simplicity of a Greek 
town."^^ Harrington saw only the republic of England, while a crowd of 
writers found disorder wherever they did not see a crown. The laws 
always meet the passions and prejudices of the legislator. Sometimes 
they pass through and are colored; sometimes they remain there and 
are incorporated. 

"^^In his Utopia [Thomas More, Utopia^ bk. 2, pp. 39-40; 1975 edn]. 



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